Referral By The Scottish Criminal Cases Review Commission In The Cases Of William Gray+james Bernard O'rourke V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk,Lord Osborne,Lord Eassie |
| Court | High Court of Justiciary |
| Date | 23 December 2004 |
| Docket Number | XC305/03 |
| Published date | 23 December 2004 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice Clerk Lord Osborne Lord Eassie | Appeal Nos: XC305/03 XC306/03 OPINION OF THE LORD JUSTICE CLERK In Referral by THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION in the cases of WILLIAM GRAY and JAMES BERNARD O'ROURKE Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______ |
For the appellant Gray: Jackson QC, Shead; Burnett Christie
For the appellant O'Rourke: Allan, Blessing; Drummond Miller
For the Crown: Mitchell AD; Crown Agent
23 December 2004
[1]I agree with Lord Eassie's conclusions. The Commission has investigated this case thoroughly and in my view it was right to refer it to the court. The Commission has interviewed the 14 surviving jurors and other material witnesses. We have heard evidence from seven of the jurors and three other witnesses. We have also considered the statements and affidavits submitted by the Commission. We know much more about the background to this trial than the appeal court did when it considered the appeals against conviction (Gray v HM Adv, 1994 SCCR 225).
[2]I recognise, of course, that the Commission and those representing the appellants, and consequently the court itself, have been constrained in the pursuit of the facts by section 8 of the Contempt of Court Act 1981 (cf Scottish Criminal Cases Review Commission, Petrs, 2001 SCCR 775). That section was designed to preserve the confidentiality of a jury's deliberations; but it can have the effect of inhibiting the investigation of a potential miscarriage of justice in a case of this kind. I am satisfied however that in this case we have sufficient information before us to enable us to reach reliable conclusions on the two issues that the Commission has raised.
[3]The appeal court was not satisfied that the evidence placed before it regarding the alleged associations of two female jurors with James Donohoe was sufficiently substantial, convincing and trustworthy to warrant an enquiry; and that it was not suggested that any of the jurors were influenced by the fact that one of their number (sic) had an association with Donohoe (ibid, at p 235A-D). It is now established, in my view, that after he was acquitted, but while the trial was continuing against the remaining accused, James Donohoe had sexual relationships with both juror X and juror Y. I need not go into the details. The advocate depute accepts that that is the only appropriate conclusion in relation to juror X and is in all probability the appropriate conclusion in relation to juror Y.
[4]If the trial judge had learned of these facts, he would either have discharged both jurors or deserted the case pro loco et tempore. Discharging the jurors would have been an obvious step; but I think that the trial judge would probably have concluded that deserting the case was the safe course.
[5]Counsel for the appellants submitted that since one or other of these outcomes would have been inevitable, that in itself demonstrated that there had been a miscarriage of justice or, at any rate, that the occurrence of a miscarriage of justice was a serious possibility.
[6]I do not accept this submission. In the course of a trial circumstances may arise which, though justifying the discharge of a juror or the desertion of the diet, would not necessarily be held to constitute a miscarriage of justice if they came to light after a conviction (cf Russell v HM Adv, 1991 SCCR 798). The discharging of a juror, or the desertion of the diet, by the trial judge may be a wise precaution if he has reason to fear that the integrity of the trial may have been compromised; but to take that course does not necessarily imply that there has been a miscarriage of justice.
[7]In my view, there was no miscarriage of justice in relation to this aspect of the trial, at any rate so far as these appellants are concerned. The Crown led a corroborated case against both of them that amply entitled the jury to return convictions of murder. As the appeal court held, there was a rational basis for the jury's discriminating verdicts in respect of the Donohoes (Gray v HM Adv, supra, at p 236B). Therefore at best for these appellants one can say only that it is a possibility that the lesser verdicts returned in respect of the Donohoes were attributable to James Donohoe's sexual interventions. If we assume in the appellants' favour that James Donohoe by these means created a bias in the minds of juror X and juror Y, and perhaps of other jurors indirectly, that bias must have been a bias in favour of the Donohoes. In this respect this case is distinguishable from McTeer v HM Adv (2003 SCCR 282) on which counsel for the appellants relied. But if James Donohoe did create such a bias, that does not imply that he thereby created a bias against the present appellants. The Donohoes' defences did not involve their incriminating either of the appellants. There is simply no evidence before the court, either in the Commission's reference or in the oral evidence that we have heard, to suggest that Donohoe's relationships with the female jurors caused a miscarriage of justice in respect of these appellants.
[8]As to juror Z's visit to the locus, the evidence takes us some way forward from the facts that were known at the hearing of the appeal. The appeal court decided that it had no reason to conclude that there was any impropriety in that visit (Gray v HM Adv, supra, at p 234A-E). It is now clear that juror Z discovered nothing from his visit that was not brought out at the trial. On the contrary, according to his own uncontradicted evidence, the only conclusion that he drew from his visit was that the locus was smaller than it appeared to be in the photographs produced in court. The evidence therefore confirms that there is nothing in this ground of appeal.
[9]In these circumstances it is unnecessary for us to consider the reasoning of the court in Aitken v Wood (1921 JC 84) and in Brims v MacDonald (1994 SLT 922), and in particular the suggestion made in those cases that, by reason of improper evidence-gathering by the court, part of the trial took place outwith the presence of the accused.
[10]I propose to your Lordships that we should hold that neither of these convictions should be disturbed and that we should refuse the grounds of appeal.
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice Clerk Lord Osborne Lord Eassie | Appeal Nos: XC305/03 XC306/03 OPINION OF LORD OSBORNE In Referral by THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION in the cases of WILLIAM GRAY and JAMES BERNARD O'ROURKE Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______ |
For the appellant Gray: Jackson QC, Shead; Burnett Christie
For the appellant O'Rourke: Allan, Blessing; Drummond Miller
For the Crown: Mitchell AD; Crown Agent
23 December 2004
[11]I agree with the Opinion of your Lordship in the chair and with Lord Eassie's conclusions and have nothing to add.
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice Clerk Lord Osborne Lord Eassie
| Appeal Nos: XC305/03 XC306/03 OPINION OF LORD EASSIE in REFERRAL BY THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION in the cases of WILLIAM GRAY and JAMES BERNARD O'ROURKE Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellants: Jackson, Q.C., Shead; Burnett Christie (Gray):
Allan; Drummond Miller (O'Rourke)
Respondent: G. Mitchell, A.D.; Crown Agent
23 December 2004
Introductory
[12]In 1992 the appellants, along with eight other men, went to trial at a sitting of the High Court of Justiciary in Glasgow on an indictment containing 31 charges, almost all of which were charges involving violence or the threat of violence. The first appellant - William Gray - was found guilty of charge 9 (assault to severe injury), charge 26 (assault by the presentation of shotgun) and charge 30, which was the most serious charge on the indictment being a charge of murder, the victim being a Neil Cairney. The second appellant - James Bernard O'Rourke - was also convicted of murder in terms of charge 30. Three other accused were also charged with murder of Neil Cairney. Two of those other accused, Stephen Donohoe and Terence Donohoe, were brothers and were convicted of culpable homicide and sentenced to 12 years imprisonment. The third of the other co-accused on that charge, David Craig Armstrong, was convicted of assault.
[13]Both appellants appealed against conviction and on 28 January 1994 those appeals were refused. The appeals are reported as Gray v HM Advocate (1994 SCCR 225). Among the grounds of appeal advanced on behalf of William Gray was the allegation that on the basis of certain information it appeared that some improprieties on the part of three members of the jury, constituting a miscarriage of justice, had, or might have, occurred. Those improprieties were (i) that a member of the jury had visited the locus of the murder during the course of the trial; and (ii) that during the course of the trial each of two female jurors had formed a relationship with a brother of Stephen and Terence Donohoe namely James Joseph Donohoe, who had been initially included on the indictment as a co-accused (though not on the murder charge) but acquitted at a relatively early stage in the trial when the Crown intimated its acceptance of his plea of not guilty. The other principal ground of appeal advanced in that appeal was, put briefly, that since the prosecution case on the murder charge was that the deceased had died as a result of a concerted attack by the accused who were alleged to form part of a group attacking the deceased with various weapons, the conviction of the present appellants for murder was inconsistent with the verdicts of culpable homicide returned respecting the Donohoe brothers, Stephen and Terence. In his report the trial judge offered a possible explanation for this distinction and the Appeal Court accepted that there was an evidential basis upon which the jury could have...
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